While the 14th Amendment obligates the States to provide equal protection, “the Supreme Court has held that [e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment…(t)hus, in Bolling v. Sharpe, a companion case to Brown v. Board of Education… (t)he Court wrote, ‘The Fifth Amendment…does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive.'”
Thus, the Federal government has the same obligation to provide “equal” – not “equitable” – protection to all as do the States.
In prior articles, we have discussed the lawless actions of the Biden Administration. From the illegal financial giveaways of the American Rescue Plan, to the illegal Student Loan Forgiveness program and the equally illegal vaccine mandate for private employers, one theme in particular has been consistent for the two full years of this Administration – their defiance of the Constitutional limits of their authority.
Nowhere is this lack of respect for the law more apparent than in the area of Equity Policy. Despite centuries of American jurisprudence “prohibiting governmental denial of equal protection,” and insuring equality before the law for all persons, regardless of race, gender or religion, Joe Biden and his minions continue to ignore the US Constitution, and deny equal protection to many people on the very basis of race, gender and religion.
On January 20, 2021, the date of his Inauguration, Biden issued an Executive Order on “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,”
which declared that “the policy of my Administration (is to) pursue a comprehensive approach to advancing equity for all…(a)ffirmatively advancing equity…is the responsibility of the whole of our Government.”
To that end, Biden ordered the “Domestic Policy Council” to “coordinate efforts to embed equity principles, policies, and approaches across the Federal Government.” He also established an “Equitable Data Working Group,” since “(m)any Federal datasets are not disaggregated by race, ethnicity, gender, disability, income, veteran status, or other key demographic variables…(a) first step to promoting equity in Government action is to gather the data necessary to inform that effort.”
In other words, a governmental agency was tasked with forcing federal agencies to adopt equity principles. Further, a federal database was established to enumerate our divisions along racial, gender and “other key demographic variables” to determine who will receive the advantages of Equity – and who will not.
Not satisfied with this effort, on June 25, 2021, Biden issued a further Executive Order, this time on “Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce.” Under this order, “the Federal Government must be a model for diversity, equity, inclusion, and accessibility…Accordingly, the Federal Government must…provide resources and opportunities to strengthen and advance diversity, equity, inclusion, and accessibility across the Federal Government.” This order requires “a coordinated Government-wide initiative to promote diversity and inclusion in the Federal workforce, expand its scope to specifically include equity and accessibility, and…develop and issue a Government-wide Diversity, Equity, Inclusion, and Accessibility Strategic Plan.”
In essence, this means it is no longer the federal government’s policy to hire the best person for the job, regardless of their race, gender or other “key demographic variable.” Instead, the very basis for hiring federal workers is their race, gender or ethnicity.
Still not satisfied with these wholesale assaults on the Fifth and Fourteenth Amendments, on February 16, 2023, Biden added yet another Executive Order – this time, on “Further Advancing Racial Equity and Support for Underserved Communities Through The Federal Government.” According to this order, “(a)chieving racial equity…is not a one-time project. It must be a multi-generational commitment, and it must remain the responsibility of agencies across the Federal Government. It therefore continues to be the policy of my Administration to advance an ambitious, whole-of-government approach to racial equity…and to continuously embed equity into all aspects of Federal decision-making.”
This latest order goes on to establish “Agency Equity Teams” across a number of federal agencies, including State, Treasury, Defense, and Justice, “to coordinate the implementation of equity initiatives and ensure that their respective agencies are delivering equitable outcomes for the American people.”
“Each Agency Equity Team shall be led by a designated senior official…charged with implementing my Administration’s equity initiatives…(t)he senior designee at each agency shall be responsible for delivering equitable outcomes…(e)ach Agency Equity Team shall support continued equity training and equity leadership development for staff across all levels of the agency’s workforce.”
It is also important to note that this latest Executive Order creates a “White House Steering Committee on Equity…which shall be chaired by the Assistant to the President for Domestic Policy…(t)he Steering Committee shall…coordinate Government-wide efforts to advance equity (and) coordinate an annual process to consult with agency heads on their respective agencies’ Equity Action Plans.”
“Each agency head shall support ongoing implementation of a comprehensive equity strategy that uses the agency’s policy, budgetary, programmatic, service-delivery, procurement, data-collection processes, grantmaking, public engagement, research and evaluation, and regulatory functions to enable the agency’s mission and service delivery to yield equitable outcomes for all Americans.”
Think about the meaning of the directives embedded in this latest Executive Order. A new level of bureaucracy has been created to insure that the Federal Government violates the Equal Protection of the law guaranteed under the Fifth and Fourteenth Amendments to the US Constitution. Every major federal department must use all of their power and authority to insure that services are provided on the basis of “equity,” not “equality.”
That means if you are a poor farmer in need of a government grant to save your crops, unless you are a member of a group considered “underserved,” the government will make sure that money goes to some other “underserved community” somewhere else. Instead of hiring the most qualified candidate for a federal job, the Justice Department, or the State Department, or the Treasury Department will hire on the basis of “diversion and inclusion” principles to “deliver equitable outcomes.” The best and the brightest need no longer apply – the qualification that gets the job is being “diverse.”
How can this be legal? the short answer is; It’s not. These Executive Orders are utterly and completely unconstitutional, and a blatant violation of the principle upon which this nation was built and stands – equal protection for all.
Much like the prior actions of the Biden Administration which have been overturned by the US Supreme Court, these Equity initiatives will also be found to be unconstitutional overreaches in excess of the President’s authority. But the cases have yet to be brought challenging the hiring of federal workers on “diversity and inclusion” principles, and for the denial of grants because the applicant was not the preferred race or gender.
Until they are, and the Courts have had a chance to issue the necessary injunctions, expect the Biden Administration to continue its lawless pattern of unconstitutional behavior.
Judge Wilson served on the bench in NYC
Illustration: Pixabay